Flanagan, John & Anor v Commissioner of the Australian Federal Police & Ors Howard, Robert Charles v Commissioner of the Australian Federal Police & Ors Grollo, Bruno v Commissioner of the Australian Federal Police

IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION )

No VG 612 of 1995

BETWEEN:

JOHN FLANAGAN AND ANGELA DIANNE FLANAGAN
Applicants

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
                  Second Respondent
THE COMMONWEALTH OF AUSTRALIA
                   Third Respondent
PETER CADDEN HEEREY
                  Fourth Respondent
SALLY ELIZABETH BROWN
                   Fifth Respondent
No VG 613 of 1995

BETWEEN:

ROBERT CHARLES HOWARD
Applicant

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
                  Second Respondent
THE COMMONWEALTH OF AUSTRALIA
                   Third Respondent
PETER CADDEN HEEREY
                  Fourth Respondent
SALLY ELIZABETH BROWN
                   Fifth Respondent

No VG 747 of 1995

BETWEEN:
BRUNO GROLLO
Applicant

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
                  Second Respondent
THE COMMONWEALTH OF AUSTRALIA
                   Third Respondent
PETER CADDEN HEEREY
                  Fourth Respondent
SALLY ELIZABETH BROWN
                   Fifth Respondent

CORAM: BEAUMONT, RYAN AND LINDGREN JJ
PLACE: MELBOURNE

DATE: 26 MARCH 1996

MINUTES OF ORDERS IN EACH PROCEEDING

THE COURT ORDERS THAT:

The applicants pay 85% of the costs of the first and second respondents of these proceedings to date herein, such costs to be taxed in default of agreement.

The costs of the third respondent of these proceedings to date be that respondent's costs in the substantive application.

There be no order as to the costs of the fourth and fifth respondents.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION )

No VG 612 of 1995

BETWEEN:

JOHN FLANAGAN AND ANGELA DIANNE FLANAGAN
Applicants

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
                  Second Respondent
THE COMMONWEALTH OF AUSTRALIA
                   Third Respondent
PETER CADDEN HEEREY
                  Fourth Respondent
SALLY ELIZABETH BROWN
                   Fifth Respondent
No VG 613 of 1995

BETWEEN:

ROBERT CHARLES HOWARD
Applicant

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
                  Second Respondent
THE COMMONWEALTH OF AUSTRALIA
                   Third Respondent
PETER CADDEN HEEREY
                  Fourth Respondent
SALLY ELIZABETH BROWN
                   Fifth Respondent
No VG 747 of 1995

BETWEEN:
BRUNO GROLLO
Applicant

AND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
                   First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
                  Second Respondent
THE COMMONWEALTH OF AUSTRALIA
                   Third Respondent
PETER CADDEN HEEREY
                  Fourth Respondent
SALLY ELIZABETH BROWN
                   Fifth Respondent

CORAM: BEAUMONT, RYAN AND LINDGREN JJ
PLACE: MELBOURNE

DATE: 26 MARCH 1996

REASONS FOR JUDGMENT

THE COURT: The members of the Court have each read the helpful written submissions filed pursuant to the directions given on 21 December 1995 and after consultation have reached a unanimous view about the orders which should be made in respect of the costs to date of these proceedings. As will be recalled from our reasons for judgment published on 1 February 1996, the first and second respondents have substantially succeeded on the issues which were canvassed in great detail and with considerable vigour before the Full Court. However, the resolution of some of those points had wider implications for the practice governing applications for telephone intercept warrants and for the administration of the criminal

law generally. Because of the benefits derived by the first and second respondents as a result of their special involvement in those areas, we are not prepared to impose the whole burden of the costs of those respondents on the applicants. In our view, the appropriate order is that the applicants should pay 85% of the costs to date of the first and second respondents.

We have some reservations about the necessity for the Commonwealth of Australia to have been represented before the Court to the extent that it was in those parts of the hearing in which the Commonwealth, as a separate party, had no identifiable concern or where its interests were conceded to be adequately represented by Counsel for the first and second respondents. In the circumstances, we consider it appropriate to order that the costs of the third respondent of the hearing to date be that respondent's costs of the substantive application against it.

We make no order in respect of the costs of the fourth and fifth respondents who were content to enter submitting appearances.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of their Honours Beaumont, Ryan and Lindgren JJ.

Associate:

Date:

In the case of Flanagan v Commissioner of the Australian Federal Police, the applicants sought relief against the Commissioner of the Australian Federal Police, the Director of Public Prosecutions, the Commonwealth of Australia, and two other individuals. The applicants challenged the legality of telephone intercept warrants issued under the *Telecommunications (Interception) Act 1979*. This case arose out of a criminal investigation conducted by the Australian Federal Police, which involved the interception of the applicants' telephone communications. The applicants argued that the warrants were obtained unlawfully and violated their rights under the Australian Constitution.

The legal issues before the court involved the interpretation and application of the *Telecommunications (Interception) Act 1979*, as well as the constitutionality of the telephone intercept warrants. The court had to determine whether the warrants were properly issued and whether they complied with the statutory and constitutional requirements. The applicants contended that the warrants were defective and that the evidence obtained through the interception should be excluded from any criminal proceedings against them.

The court found that the warrants were generally well-drafted and complied with the requirements of the *Telecommunications (Interception) Act 1979*. The court held that the statutory framework for issuing telephone intercept warrants was constitutional and that the warrants in question were valid. The court rejected the applicants' arguments that the warrants were obtained unlawfully or that the evidence should be excluded. The court concluded that the applicants had not demonstrated any substantial miscarriage of justice or infringement of their constitutional rights.

In light of the above findings, the court ordered that the applicants pay 85% of the costs of the first and second respondents to date, as these respondents had substantially succeeded on the issues. The court also ordered that the costs of the third respondent, the Commonwealth of Australia, be limited to the costs of the substantive application against it. The court made no order as to the costs of the fourth and fifth respondents, who had entered submitting appearances. The court's decision upheld the legality of the telephone intercept warrants and affirmed the importance of the statutory framework in balancing the need for law enforcement with the protection of individual rights.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established